Office of the Attorney General
State of Texas

Re: Whether an individual may be employed as a chief deputy
for a county tax assessor-collector and as an official court
reporter for a county court (RQ- 1690)

Dear Mr. Sumrow:

You state that the person employed by Rockwall County as the
county tax assessor-collector's chief deputy was formerly the
official court reporter for the Rockwall County Court. She would
like to know whether it would be legally possible for her to hold
both positions.

We will first consider whether article XVI, section 40 of the
Texas Constitution would prohibit one person from holding both
positions. This provision states in part:

No person shall hold or exercise at the same time, more than
one civil office of emolument....

Tex. Const. art. XVI, s 40.

The following statute provides for the employment of a court
reporter:

Each judge of a court of record shall appoint an official
court reporter. An official court reporter is a sworn officer of
the court and holds office at the pleasure of the court.

Gov't Code s 52.041. A county court is a court of record and is
therefore subject to this provision. See Tex. Const. art. V, s
15.

A court reporter is not an officer within article XVI, section
30, of the Texas Constitution, which provides that the "duration
of all offices not fixed by this Constitution shall never exceed
two years...." In Robertson v. Ellis County, 84 S.W. 1097
(Tex.Civ.App.1904, no writ), the court held that an official
stenographer appointed by the district court did not hold an
office within this constitutional provision. Although the
statute described the position of stenographer as an office and
declared that the stenographer "shall be a sworn officer of the
court," it did not confer on that person any sovereign functions
of the judicial department of the government. 84 S.W. at 1099.

Other Texas courts have concluded that an official court
reporter is not an officer within various other provisions. See
Lightfoot v. Lane, 140 S.W. 89, 90 (Tex.1911) (stenographer for
Court of Civil Appeals was employee, not officer); Harris County
v. Hunt, 388 S.W.2d 459, 467 (Tex.Civ.App.--Houston 1965, no
writ) (court reporter was not an officer within article XVI,
section 61, of the Texas Constitution requiring officers to pay
fees into county treasury); Tom Green County v. Proffitt, 195
S.W.2d 845, 847 (Tex.Civ.App.-- Austin 1946, no writ) (official
court reporter is not a "public officer" within article III,
section 56, prohibition against local laws creating offices).
Finally, this office has concluded that a court reporter is not a
civil officer of emolument within article XVI, section 40, of the
constitution. Attorney General Opinion O-6491 (1945). [FN1] A
court reporter for a county court is not a civil officer of
emolument.

A deputy appointed by a county tax assessor-collector to assist
him in his duties is an employee, and not a civil officer of
emolument. See Green v. Stewart, 516 S.W.2d 133 (Tex.1974);
Local Gov't Code ch. 151 (appointment of employees by county
officer). Accordingly, article XVI, section 40, of the Texas
Constitution does not prevent one person from holding both
positions.

The common law doctrine of imcompatibility does not bar one
person from holding two public employments. See generally
Attorney General Opinion JM- 1047 (1989). The dual employment
you inquire about is accordingly not prohibited by this doctrine.

You argue, based on Attorney General Opinion O-5070 (1943),
that the position of an official court reporter is a full-time
position, and that the judge may not appoint a part-time court
reporter. Attorney General Opinion O-5070 determined that a
district judge could not appoint the official court reporter to
work part-time and be paid on a per diem basis. The official
court reporter's yearly salary was set by statute and no statute
authorized him to work part-time and receive a lesser amount.

Attorney General Opinion O-5070 is not dispositive of this
matter. It relied on statutes that have since been amended or
repealed. See V.T.C.S. art. 2327a (1929, repealed 1947) (setting
salary of court reporter). Moreover, it dealt only with the
court reporter of a district court and not the court reporter of
a county court.

Section 52.046 of the Government Code, which states the powers
and duties of an official court reporter, provides in part:

(a) On request, an official court reporter shall:

(1) attend all sessions of the court;

(2) take full shorthand notes of oral testimony offered
before the court ...;

(3) take full shorthand notes of closing arguments if
requested to do so by the attorney of a party to the case ...;

(4) preserve the notes for future reference for three years
...;

(5) furnish a transcript of the reported evidence or other
proceedings....

(d) A judge of a county court or county court at law shall
appoint a certified shorthand reporter to report the oral
testimony given in any contested probate matter in that judge's
court. (Emphasis added.)

Gov't Code s 52.046.

The position of court reporter is described in terms of the
duties to be performed, not of the number of hours of service
required each week. The number of hours required to perform the
job will depend upon the number of sessions the court reporter is
requested to attend, record, and reduce to a written transcript
and is likely to reflect the workload of the court with which the
reporter is associated. No provision fixes a salary for a county
court reporter that must be paid without regard to the amount of
time required to perform the duties of the position. Instead,
the commissioners court sets the salary of the court reporter in
accordance with chapter 152, subchapter B of the Local Government
Code, formerly article 3912k, V.T.C.S. Attorney General Opinion
MW-487 (1982). The commissioners court may set a salary
commensurate with the number of hours worked. See Local Gov't
Code s 152.012 (salary may not be set at an amount less than the
salary in effect on January 1, 1972).

We find no provision that expressly or impliedly requires the
court reporter for the county court to serve as and be paid as a
full-time employee, no matter how little work the job actually
requires. See generally Attorney General Opinions JM-163 (1984)
(secretary of Rockwall County criminal district attorney is not
barred from serving from time to time as court reporter for
Rockwall County Court); MW-415 (1981) (service by one person as
deputy county clerk and deputy district clerk of Dallas County).
Whether a person who already serves as deputy tax assessor-collector will be able to meet the work schedule of the court
reporter for the county court is a fact question to be considered
by the county judge in making the appointment and not a legal
question to be addressed in an attorney general opinion.

You ask whether your county personnel policy will be violated
if one person holds both positions. Since this question is
premised on a conclusion that a county court reporter must serve
as a full-time employee, we need not address it. But see
Attorney General Opinions JM-440 (1986); JM-182 (1984)
(commissioners court may not set hours for employees of other
county officers).

SUMMARY

Article XVI, section 40, of the Texas Constitution does not
prohibit one person from serving as deputy tax assessor-collector
of Rockwall County and court reporter of the Rockwall County
Court. The position of official court reporter of the county
court is not legally required to be a full-time position.